DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BUG
Docket No: 3999-10
3 August 2010
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Subj :
Ref: (a) Title 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 14 Dec 09 w/attachment
(2) HQMC JAM3 memos dtd 8 Jan 09 (sic) and 2 Mar 10
(3) HQMC MMER/PERB memos dtd 7 and 8 Apr 10
(4) Subject’s naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written
application, enclosure (1), with this Board requesting, in
effect, that his naval record be corrected by removing the
fitness report for 8 December 2007 to 8 August 2008, a copy of
which is at Tab A. He also impliedly requested removing all
references to his nonjudicial punishment (NUP) of 7 August
2008, removing the Commandant of the Marine Corps (CMC) (MMPR-
2) letter dated 17 December 2008, Subject: Revocation of
Selection from the FY (Fiscal Year) 2008 Reserve Gunnery
Sergeant Selection Board (SMCR) (Selected Marine Corps
Reserve), and promoting him to gunnery sergeant with a date of
rank and effective date of 1 August 2008.
2. The Board, consisting of Mses. Countryman and Guill and Mr.
Storz, reviewed allegations of error and injustice on 29 July
2010, and pursuant to its regulations, determined that limited
relief should be granted. Documentary material considered by
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.
3. The Board, having reviewed all the facts of record
pertaining to Petitioner’s allegations of error and injustice,
finds as follows:
a. Petitioner exhausted all administrative remedies which
were available under existing law and regulations within the
Department of the Navy.
b. The NUP was set aside because the only punishment
awarded, the revocation of Petitioner's selection for promotion
by the FY 2008 Reserve Gunnery Sergeant Selection Board, was
not a legal punishment.
ec. In enclosure (2), the Headquarters Marine Corps (HOMC)
Judge Advocate Division has commented to the effect that
Petitioner's record should be purged of all references to the
NIP, as it has been set aside.
d. In enclosure (3), the HOMC Performance Evaluation
Review Board (PERB) directed modifying the contested fitness
report by removing all references to the NUP that has been set
aside, but concluded that the report as modified should not be
removed, as it documents misconduct of which Petitioner has not
been exonerated.
CONCLUSION:
Upon review and consideration of all the evidence of record,
and especially in light of enclosures (2) and (3), the Board
finds the existence of an error warranting partial relief,
specifically, removal of the remaining references to the NUP
that has been set aside. The Board finds the revocation of
Petitioner’s selection for promotion should stand, for the same
reason the PERB did not direct completely removing the
contested fitness report. In view of the above, the Board
directs the following limited corrective action:
RECOMMENDATION:
a. That Petitioner’s naval record be corrected by removing
all remaining references to his NJP of 7 August 2008, to
include the following:
{1) Unit Punishment Book entry
(2) Second sentence, paragraph 1 of CMC (MMPR-2) letter
dated 17 December 2008, Subject: Revocation of Selection from
the FY 2008 Reserve Gunnery Sergeant Selection Board (SMCR).
The sentence to be removed reads as follows: “On 7 August
2008, you received non-judicial punishment (NJP) for violation
of Article 121 (larceny and wrongful appropriation) of the
Uniform Cede of Military Justice (UCMJ) .”
b. That any material or entries inconsistent with or
relating to the Board’s recommendation be corrected, removed or
completely expunged from Petitioner’s record and that no such
entries or material be added to the record in the future.
2
¢. That any material directed to be removed from
Petitioner’s naval record be returned to the Board, together
with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such. purpose, with no cross
reference being made a part of Petitioner’s naval record.
d. That the remainder of Petitioner’s request be denied.
4. Pursuant to Section 6(c) of, the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(c)) it is certified that a quorum
was present at the Board’s review and deliberations, and that
the foregoing is a true and complete record of the Board's
proceedings in the above entitled matter.
ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section
6{e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section
723.6(e)) and having assured compliance with its provisions, it
is hereby announced that the foregoing corrective action, taken
under the authority of reference (a), has been approved by the
Board on behalf of the Secretary of the Navy.
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